Andy Worthington

June 28, 2011

With what can only come across as cynical timing, the US Supreme Court on Monday, the day after the UN International Day in Support of the Victims of Torture, declined without comment to take up a lawsuit filed on behalf of 250 Iraqis — formerly prisoners at the notorious Abu Ghraib prison near Baghdad, home of the most significant scandal in the Bush administration’s "War on Terror," which surfaced in April 2004 with the publication of photos showing the torture and abuse of Iraqi prisoners in US custody at the prison. The prisoners were seeking to hold Titan Corporation, which provided Arabic translation services, and CACI International, which provided interrogators, accountable for their role in the torture and abuse of prisoners at Abu Ghraib in 2003 and 2004.

Although a handful of serving US military personnel — eleven in total, referred to by President Bush as "a few bad apples" — were prosecuted for the abuse at Abu Ghraib, they were, in fact, scapegoated for implementing a policy that came from the highest levels of government, and which was designed to ensure that all aspects of the detention regime were dependant upon the whims of interrogators — as at Guantánamo, from where the system was exported by its commander, Maj. Gen. Geoffrey Miller, who was sent to "Gitmoize" Abu Ghraib with the results that the world saw to its horror in April 2004.

The case that was shunned by the Supreme Court on Monday, Saleh v. Titan Corporation, was an important attempt to extend accountability from the military to the contractors who make up such a huge part of America’s post-9/11 war machine, and who, unlike their official military counterparts, appear to be as much beyond the law as the senior administration officials — and their lawyers — who implemented, approved and oversaw every aspect of the "War on Terror" that should have shocked the conscience — involving torture, "extraordinary rendition," secret prisons and the miseries of arbitrary detention at Guantánamo. As Human Rights First explained, "Army investigations implicated at least five private contractors in similar crimes," although "no contractor was ever charged."

In dismissing the case, the Supreme Court has ensured that the final word on contractors’ responsibilities rests with the D.C. Circuit Court, the appeals court in Washington D.C. that is populated by several notable right-wing ideologues who have been steadily demolishing the habeas corpus rights of the Guantánamo prisoners over the last 18 months until the "Great Writ" has been rendered meaningless. The judges include Senior Judge A. Raymond Randolph, notorious for backing every piece of legislation relating to Guantánamo under the Bush administration that was subsequently overturned by the Supreme Court.

For the Abu Ghraib ruling, another of Randolph’s aged colleagues, Senior Judge Laurence Silberman — also responsible for outrageous outbursts about Guantánamo, masquerading as legal opinion — led a panel that ruled, by two votes to one in September 2009, that "claims against the contractors were precluded under a doctrine the two majority judges called 'battlefield preemption,’" as the Christian Science Monitor described it, or, as Human Rights First put it, that "the contractors were involved in combat activities and therefore, should be protected from lawsuits."

In the Circuit Court’s majority opinion, Judge Silberman wrote, "During wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim [for damages] arising out of the contractor’s engagement in such activities shall be preempted."

Silberman also regarded it as significant that, although the government acted swiftly to prosecute military personnel in connection with the torture and abuse at Abu Ghraib, it failed to tackle contractors for their role. "This fact alone," he wrote, "indicates the government’s perception of the contract employees’ role in the Abu Ghraib scandal."

The Christian Science Monitor also explained:

The appeals court also ruled that the former Iraqi detainees were not empowered under the Alien Tort Statute to file a lawsuit in a US court seeking to enforce a violation of the law of nations. The judges said that although torture committed by a government is a violation of a settled international norms, the same act by a private contractor is not.

Judge Silberman claimed, "Congress has never created this cause of action," stating that, although Congress had "empowered US residents to sue foreign governments for torture," as the Christian Science Monitor described it, "federal law makers excluded from the law the possibility of filing a similar suit against American military officials overseas, or private individuals working with the US government overseas."

In the important dissenting opinion, which should have provided an avenue for the Supreme Court to follow, Judge Merrick Garland noted that he would have allowed the Iraqis’ lawsuit to proceed against both Titan and CACI, declaring:

No act of Congress and no judicial precedent bars the plaintiffs from suing the private contractors –- who were neither soldiers nor civilian government employees. Neither President Obama nor President Bush nor any other executive branch officials has suggested that subjecting the contractors to tort liability for the conduct at issue here would interfere with the nation’s foreign policy or the executive’s ability to wage war. To the contrary, the Department of Defense has repeatedly stated that employees of private contractors accompanying the Armed Forces in the field are NOT within the military’s chain of command, and that such contractors ARE subject to civil liability.

Following the Circuit Court’s ruling in September 2009, Human Rights First’s International Legal Director Gabor Rona stated, "This decision, which was supported by the Obama administration, informs the world that the United States of America has no intention of obeying its moral and legal obligation to provide enforceable remedies to victims of sadistic acts of torture alleged to have been committed by military contractors." Human Rights First also noted, "Under the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the United States must provide 'enforceable’ or 'effective’ remedies to victims for acts of torture and serious abuse."

In their brief urging the Supreme Court to take up the case, the Iraqis’ lawyers were, of course, aware of these issues, although they specifically made a point of mentioning how private contractors outnumber official US personnel in Afghanistan and Iraq, and how allowing the Circuit Court’s ruling to stand allows them to break the law with impunity.

"There are 217,832 contractor personnel providing services to the United States in Iraq and Afghanistan, answering not to the military chain of command but to for-profit corporations who receive a total of over $5 billion annually for their services," Vincent Parrett wrote in the brief to the court. "This is a case about the commission of war crimes by private actors who violated state, federal, and international law," he added, pointing out, crucially, that the Circuit Court’s holding "has eviscerated one of the most effective means of deterring them from violating the law."

In response to the Supreme Court’s dismissal of the case, which was largely ignored in the mainstream US media, Human Rights First issued a press release deploring the decision, and noting the unusual circumstances that preceded the decision, whereby, "[b]efore deciding whether or not to hear the case, the Supreme Court asked the US government, which is not a party to the suit, its opinion on the case," and that the government, "[w]hile noting the shortcomings of the appellate court’s ruling … recommended that the Court should decline to hear the case, effectively denying victims a remedy."

In a specific criticism of the Supreme Court decision, which I endorse fully, Gabor Rona stated:

Last week on the International Day in Support of Victims of Torture, President Obama proclaimed that the United States "will remain a leader in the effort to end torture around the world and to address the needs of torture victims." Nothing undermines the credibility of the United States as a voice for human rights and for respect for the rule of law more than its hypocritical dismissal of the suffering of torture victims at the hands of the US government and its agents.

Note: Also see Human Rights First’s amicus brief arguing that the decision by the D.C. Circuit to immunize the criminal conduct of private military contractors is incompatible with the United States’ international legal obligations, and Human Rights First’s letter to the Acting Solicitor General, in March this year, urging the government to advise the Court to hear the case and reverse the decision that denies victims a remedy.

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